Wells v. Mullis, 42722

• Decision Date: 13 February 1986
• Docket Number: No. 42722,42722
• Citation: 255 Ga. 426,339 S.E.2d 574
• Parties: WELLS v. MULLIS.
• Court: Georgia Supreme Court

Page 574

339 S.E.2d 574

255 Ga. 426

WELLS v. MULLIS.

No. 42722.

Supreme Court of Georgia.

Feb. 13, 1986.

A.G. Wells, Jr., Pembroke, for Derall E. Wells.

Michael A. Lewanski, Savannah, for William Blanton Mullis, b/n/f Diras K. Mullis.

HILL, Chief Justice.

This is a suit in equity. As to this the parties are in agreement; beyond that they are not. The trial court granted summary judgment to the defendant, Mullis, and denied Wells' motion for summary judgment. Wells appeals.

Derall Wells and William Mullis were involved in an automobile accident in April, 1966, which caused severe debilitating injuries to Mullis. Suit was filed in Chatham Superior Court against Wells in January, 1968. ¹ On May 8, 1968, Wells allegedly agreed to pay Mullis $4,450: $850 cash and 72 monthly payments of $50.00 each. It was also provided that Mullis could take judgment on the suit so that execution on it could proceed in case of default on the agreement. The settlement was reduced to writing but the copy of it in the record is not signed, and it is possible that the original was not signed. However, by letter also dated May 8, 1968, Mullis' attorney acknowledged receipt of $800 paid by Wells pursuant to the agreement. Thereafter, without actual notice to Wells, a jury verdict for $172,188 was returned against him on July 23, 1968. Judgment on the verdict was not entered until September 10, 1971.

Meanwhile, Wells paid Mullis $50 monthly, which payments were accepted, first by Mullis' attorney and after July, 1969, by Mullis. Wells' last check was dated May 15, 1974. A year later, by letter dated May 14, 1975, Wells was informed by a different attorney of the judgment which had been entered against him. Although Wells had marked the last $50 check "paid in full," it was never cashed. Mullis does not unequivocally deny that the settlement was entered into; he denies, however, that his former attorney was authorized to settle the case. On August 25, 1978, fi.fa. was issued and entered, but there is no showing that it was served upon Wells or his property. In April, 1984, Mullis instituted garnishment proceedings in the State Court of Fulton County, and Wells' traverse was overruled on the ground that the Fulton County court could not set aside the Chatham County judgment. This decision was affirmed by the Court of Appeals in an unpublished opinion dated December 4, 1984.

This suit in equity was instituted on June 11, 1984. Summary judgment was entered against Wells on the ground that the 3 year statute of limitations applicable to complaints in equity to set aside judgments had run. OCGA § 9-11-60(f).

The threshold issue in this case is whether this is a suit in equity to set aside a judgment obtained by fraud, accident, mistake, etc., OCGA § 9-11-60(e), as to which the 3 year statute of limitations would be applicable, OCGA § 9-11-60(f), supra. The complaint alleges that the negligence suit for personal injuries was settled and it has attached to it the unsigned settlement agreement as an exhibit, along with a copy of the attorney's letter acknowledging receipt of $800 paid pursuant to that agreement. The complaint alleges that the judgment has been satisfied by payment of the agreed sum. The complaint prays that the Fulton County garnishment be temporarily abated, that the defendant be required to acknowledge that the judgment has been paid and satisfied, and that the clerk of court mark it satisfied. The complaint does not pray that the judgment be "set aside," and the words "fraud, accident, or mistake" do not appear in the complaint. We find that this is a suit in equity to enjoin enforcement of a judgment which allegedly has been satisfied.

It is true that under the facts stated above, here construed in favor of respondent Wells on Mullis' motion for summary judgment, a timely cause of action might lie to set aside the judgment for fraud, accident or mistake under OCGA § 9-11-60, supra. However, it is also clear that more than three years have passed from entry of that judgment. Therefore, the trial court correctly held that Wells could not now maintain an action to set it aside.

The trial court erred, however, in failing to recognize that this suit could be maintained as one to enjoin enforcement of the allegedly satisfied judgment....